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China 120, North Korea 95, United States 26, Florida 21, U.s. 21, Us 17, Patrick 11, Russia 10, Wheatley 9, South Korea 9, North Koreans 7, Iran 5, Ruth Bader Ginsburg 4, Pyongyang 4, Jennifer 4, Korea 4, Sotomayor 3, Kim Jong-un 3, A.q. Khan 3, Washington 3,
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  CSPAN    U.S. Senate    News/Business.  

    February 20, 2013
    9:00 - 12:00pm EST  

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can, with impunity, grip of an agreement as he did with a leap day moratorium deal last year, conduct to long range nuclear test, conduct a nuclear test. remember, his father waited, he was trying to build and consolidate power by showing some respect for the founder of north korea. kim jong-un is a man who is madly dashing tissue is credentials and a very reckless and dangerous way. i think would be very dangerous for us to let him think that that is acceptable behavior. so this may be changing north korea's tolerance for risk. and the fact kim jong-un may be under the assumption that we are becoming even more risk and tolerant -- and tolerant. that we will be risk averse and cost of first a look at our budgeting paper cutting back on our operational capacity, a special with sequestration threatening at the end of this month. kim jong-un may be reading this headline to the sequestration
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thinking, united states couldn't afford to operate. who knows what he thinks on these issues? that it's very, very dangerous to let him think that this is something that's going to be acceptable. of course, it's deeply dangerous to threatening and do not to act on it. so we have to be very serious when we make decisions as a government on what to do. i think we're also emboldening iran. iran's latest action on nuclear proliferation can partly be explained by the successful missile and nuclear launch from north korea. so these are feeding age of the. it's collaborative. and it is very dangerous. now, the danger here is that, my fourth point is that we need resolute action that we can take in concert with allies, beginning with the south korean ally who is on the front line of this issue and is the leading role. with other partners including the major powers, china has a
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key role to play here. japan, would like to see russia for a more helpful. obviously, the united nations, security council still has a role to play in many issues as it celebrates its next set of actions. but we have to, together, find a way to make sure that the kim family regime doesn't feel invulnerable when it improves its march towards a nuclearized icbm. when it improves its capabilities through provocations to the region. we need, in other words, an offense not just a defense. to put it in a different way. we have to shift from what has been defensive containment that's been very leaky because of cooperation with iran proliferation off the peninsula with the fact we have not stopped this long march to a capability, to an offensive containment strategy where the
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united states, especially its key allies, south korea and japan, augment in the first instance, a defensive posture, through improved and more integrated intelligence, surveillance and reconnaissance through ballistic missile capability, through a readiness to deal with provocations across the spectrum. to show both north korea and, frankly, china that there is a price to be paid by accelerating these kind of capabilities in this region. i want to reinforce a basic point. there's a basic principle that we have to kind of try to work to achieve over the next several years. the principle is that provocations be an excellent of probability for kim jong-un, not an accelerant of security. that has to be the paradigm change. that's what we have to be trying to achieve, and it's a fundamental change. the system right now in north
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korea is currently stacked in favor of a military first policy and in need of a nuclearized icbm at the center of the. there's little downside of north korea so far from provocation, not least because china's main economic partner and political partner has been unwilling or unable to do more. mind you, the chinese are very frustrated as well with north korea, but at the same time they have a bigger responsibility than others given the close role they play in working with north korea. especially economically. the assumption in north korea is also that opening up the country, this closed system, anachronistic system really in the 21st century, a system that doesn't belong on the internet in a way. we can all look in now through google earth, and north korea still gets his own country the way we can look at their military sites, even on google earth now. but the associate is that opening up is a bigger threat than not opening up. and standing up as a threat
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ensuring the outside powers to be if it. we need to reverse this thinking to make it clear that actions, not mere words, make the kim family regime more vulnerable, not impregnable, with provocations. so i've mentioned military and defense measures have a role, and anywhere right now running in the wrong direction with our readiness crisis and our budget crisis. south korean military, park geun-hye's administration love a key opportunity here to strengthen the south korean military role. we can talk about adapting deterrence, about improving readiness across the dmz, the demilitarized zone, the northern limit line, in cyberspace and elsewhere. obviously, incoming national security office chief kim jong sue will have a key role to play from the blue house in terms of courtney a lot of these policies and dialogues, assuming the south korean government goes
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forward as planned. this brings me to a fifth and final point, though that the offensive containment has to be comprehensive. it's not just military means, by any means. and we need to go and think about the political economic, social, legal, and other steps, informational in particular that can be taken to produce the kind of paradigm change i'm talking about overtime. the political unity is a good start in terms of as much liquidity within our allies but also within the region is possible is a strong start, and we ought to be building on the. the informational and social issues though need to be a bigger part of a strategy. because north korea is vulnerable to the truth. it's vulnerable to information, and one can see great opportunity here in different arenas.
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right, there are three north korea's may be, right? there is the kim family regime inner circle. there's the elite, the top, well, maybe up to 5% of its it but i think is probably less than that. but in any event, it's the group using the one and a half million cell phones. it's the group watching the south korean soap operas. it's the group that is becoming the information consumers of north korea who are desperate for more information and to were salivating when eric schmidt, the chairman of google was visiting, because there think about opportunities for the closed system internet. and then there's all the north koreans basically, the rest of north korea, most of north korea, where just puncturing the bubble of censure, of censorship that exists in north korea with what north korea really spends on defense, what it spends on its missile programs. i've always equated it to the lessons out of development of
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putting the local aid budget up on a village schoolhouse door so villagers would now if the village elders were stealing the money. that was intended for the schoolhouse. i think we can, through basic information in this age, let more and more north koreans know about the human rights record. this north korean database that's not a permanent, growing database now five, six years running becomes the kind of record that eventually will be impossible to keep out of north korean hands, over a period of time, through various means. those are the kinds of things that can create a reform movement, or support for reform when it finally does come, or change would finally comes to north korea but it doesn't exist now but you have to try to create that demand, armed them ahead of time. i think economically we need to go beyond the kinds of limited sanctions that we've taken so far. we need to go back to the 2002 i did. we need china's support because
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chinese banks are harboring some of the ill-gotten gains, the illicit gains, of north korea. and if china wanted really to put the screws to kim jong-un and his inner circle, they could tighten up some of those bank accounts overnight and we some of those bank accounts overnight and we could send a very swift signal that there is a price to be paid for provocation, and if you want to deal with the world as it is, you're going to have to move away from the provocations in a different direction, even if you can't open up your country overnight without fearing reform. anyway, we have to remain open to real change but we do need a political exit ramp eventually from this horror story of north korea, not suggesting that we are trying to seek rapid regime change here we are not seeking war. were not seeking rapid regime change. we are not simply relying on old measures, but we do have to bring all of these instruments of policy to bear in a more effective strategy. in china, which has to be
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sitting on a new assessment of north korea, it's north korean ally. on the one hand, they may be saying yes, north korea's nuclear weapons state and those will be now, but on the other hand, they may be saying, north korea threatens china's interests, more than ever. we thought we had unlimited period of time for denuclearization because it really didn't threaten our interest. as long as we could keep civility, we, chinese. but down hopeful that more chinese are going to say, you know what, i think that assessment was wrong. because when you think about a nuclear arms race in northeast asia, when you think about an arms buildup in northeast asia, when you think about the proliferation off the peninsula to iran from what north korea is doing, when you think about the steps the united states is going to have to undertake a better prepare for defense against a threat to u.s. territory because of this coming capability, i think china is going to say
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that's unacceptable. i'm hopeful. but at the end of the day as i say, the united states can't sit there waiting just for china. we have to work with our allies on a comprehensive strategy, again trying to let the region know that we want to be that important security guarantor. we also want to be a major trader, an investor to the region and with asia-pacific. and for the stability and the trade and investment, for prosperity and liberty to take root in this century, in a dynamic century with a rising asia pacific, it's going to have to take greater stability than north korea is right now letting it have. so with those initial comment, i'll turn it back to our chairman. >> well, thank you, patrick. as always, very comprehensive argument. now, the floor is open. before we open the floor --
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[inaudible] >> i want to pick up on patrick's point, and elaborate on what i see as the elephant in the room, which is china. outgoing defense secretary panetta told the house armed services committee last year that china has, quote, clearly assisted north korea's ballistic missile program. it was also clear evidence that chinese nuclear technology found its way into north korean hands, via the a.q. khan network in pakistan. through north korea onto syria and iran. as i've written in the past, china is not only a proliferator of wmd materials and
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technologies, it is a proliferator of proliferators your the stuff gets around the world. in addition, china has been a key protector of pyongyang against international sanctions at the u.n. security council it either by blocking or substantially watering down those sanctions. yet, for more than two decades, prevailing view among western experts has been that china shares our concern about a nuclear armed north korea. when confronted with the reality that china has consistently protected and enabled the north koreans a wmd program, the fallback position has been, well, thank you for your north korea nukes, but even more, they fear collapse of the regime and a flood of refugees across their border. but what is never possibly
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explained, at least to my understanding, is why the north korean regime would choose collapse if it simply agreed to an infusion of chinese and western aid in exchange for giving up its nuclear program. is the argument being made that the north korean people would rise up and demand, we want nukes, forget the food and fuel? there's an alternative explanation for china's behavior. and that is that north korea's wmd program, which so unsettles the west, actually serves china's interest to in the following ways. it has enabled china to play the responsible negotiating partner of the west and the six-party talks, and other international forums. as an indispensable player in those negotiations, this has given china enormous leverage
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with the west in its own negotiations, over human rights, trade, iran, and other issues. the position of the west has always been, we can't press china too hard on these issues because we need them on north korea. it has distracted western attention and averted resources stretching u.s. forces than in the face of multiple global challenges. it has undermined u.s. counter proliferation, efforts elsewhere, especially in iran as patrick has pointed out, for which north korea has become an excellent role model. for all those reasons, china has benefited from north korea's troublesome and dangerous behavior your after almost 20 years of this double game, which i called in the "christian science monitor" article
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yesterday the pyongyang-beijing two-step, it is surely time for the u.s. to reassess its strategies, not only to north korea, but to a china. i will leave it there for now so we can get into discussion. >> thank you. hello? [inaudible] >> first a brief word about china. i tend to, towards a jovial about china's real motives and attitudes towards the north korean nuclear and missile programs. when i read in the institute for science and national security
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report in october 2010, david albright's organization about the yongbyon, north korean company operating in the business district in beijing, operating to bring to north korea components and technology for the uranium enrichment program, i began to doubt that china really saw a major stake and i've become rather cynical about it, especially the chinese military and chinese international liaison department now, that being said, we do know
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that there are other voices in china that don't like this chinese support for north korea. and i would just make the very simple point, that whatever our strategy is towards north korea, and i fully agree with patrick and the congressman, that we need a new strategy, a denuclearization simply is not enough to hang a strategy on it anymore with north korea. but one of the key audiences is for a new strategy needs to be these moderates in china who do want a change in chinese policy. a doctor, for example, was
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included in the press result. people like included don't like the level of chinese support for north korea. and that is an audience we need to keep appealing to. we need to try to strengthen their views, and encourage them to up their challenge to the chinese government. with regard to chinese policy towards north korea. a comment on proliferation, and i'm going to focus on what patrick cited as the specific proliferation issue of iran, with regard to north korea. many of you, i am sure, saw the reports coming out of north korea that iranian missile experts from the, i believe it's -- company in the iran, came to north korea during the summer
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and whether helping the north koreans to prepare for the december missile launch. a south korean official was quoted as saying, we are -- we have just -- we have pinpointed where these iranians are staying. we've cited where they're leaving the residency and going to missile sites on a daily basis. now, in the past we know that the iranians had observed the previous missile tests and the nuclear tests. they had sent observers shortly before these events. this, however, seems to be a different level of iran's involvement in the north korean weapons of mass destruction program. and i take from that, that the north koreans stake, or the
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iranian stake, excuse me, in the north korean nuclear missile programs has escalated. it has moved to a new level. this relationship is no longer a one way street. one way street in the past has been the flow of north korean technology, north korean technicians and scientists and component parts of missiles to iran, helping the iranians to develop these programs within iran. but now it seems that the iranians are beginning to create a more direct role and participation in the north korean programs in north korea.
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that means that iran sees a much more direct stake in what north korea is doing for these programs in north korea itself to and what worries me most about this is that iran may now see its relationship with north korea, what north korea is doing with these programs as its track 2, in terms of its goal of acquiring longer range missiles, and ultimately, nuclear weapons. in other words, track 2 meaning that if the containment and pressure policies and sanctions of the u.s. and its allies do contain limit or even reverse
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iran's own programs within iran, north korean programs represent a potential track 2 for iran to acquire nuclear warheads or longer range missiles, once north korea begins to produce nuclear warheads and longer range missiles. i suspect, i believe at this juncture, they do have a production sharing agreement or arrangement for the future. i don't know that we can really do anything about this. therefore, i am very pessimistic that we can keep iran now from developing, from acquiring nuclear weapons. because i think they have this track 2 path now related to north korea. this doesn't get talked about very much.
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all of the information about the iranian missile experts and their work last summer came from the south korean government and from south korea and japanese sources. the state department, and i'm very critical of the state department about this, the state department has maintained a virtual blackout of information since 2007 about the north korean-iranian relationship. i think the state department has two reasons for this. it has done this in both the bush administration and now in the obama administration. clearly, whatever limits, and i think the limits are very severe now on the united states in dealing with the proliferation question at all, but any prospect of dealing with it, i
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think is nonexistent, as long as the state department maintains this kind of blackout policy in, not only providing any information about it, but in frankly wanting to deal with this at all come in negotiations with north korea. chris hill took it off the table in the february 29 agreement does not mention proliferation. and that's just an example of the situation. so this relationship that north korea has with iran, i believe, has entered a new and more formidable and threatening stage, frankly, at this point. >> well, thank you, larry. if there is someone from state department. yes, hi. you are not represent the state department. okay, now the floor is open to anybody can comment do either
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joe or larry's comments, argument, what not. the floor is open. raise your hand. okay, identify yourself. okay, would you come up? [inaudible] >> okay, questioners come, you stand by microphone, please. thank you. >> this question is actually for patrick cronin. you said that the nuclear tests was at least partly -- ian rinehart, congressional research center. you said the nuclear test was at least partly designed to sort of break this possibility of interkorean were approachment under madam president park. but it seems to me that it's more of a sort of a drawback if anything. and i'm curious to see if you can how you would explain that, why you would want to sort of throw a wrench in the possible
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trust policy that she is talked about, you, what does north korea gain by basically foreclosing any possibly of engagement for the near-term. >> well, if we understood why north korea and makes these provocations, we would be better off understanding why they would take these action but it would seem to be antithetical to the interests. the reality i think is that park geun-hye had already been using friends to reach out to the north korean government, and to let them know publicly as well that a summit meeting with the asked for in 2013. sometime this year. and clearly she campaigned on the idea of a more balanced approach to north korea. that is -- having to deal with the security threats. but something more measured than
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the way the myung-bak policy became -- it was an action cycle from the very beginning of president lee's administration. she was trying to start off on a different approach. i mean, i believe that literally kim jong-un or at least his inner circle, i can tell you whether he makes these decisions are with his uncle makes the decisions or someone else makes the decision in the military or the party, i don't think they wanted anything to do with another summit, a north-south summit this year with kim jong-un. he had a precarious position with china, notwithstanding the comments we've heard about chinese sort of de facto support for north korea. i think china has been trying to put more pressure on north korea. so he could have a strong position with china. and the inner circle wanted to show that he was indeed stable and strong before you ever had
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to engage diplomatically, before he engaged new diplomatic the. mind that, never that he was ever -- leading to the agreements we want to again, his terms may never be completely acceptable, we don't know but we thought it was a window of opportunity. there certainly was a requirement to test kim jong-un after the sudden death of his father but it made sense to reach 200 it makes sense to try that leap day moratorium to see if he wants a slightly different path. not an opening, not surrender, not give up his nuclear program entirely, but some kind of lid on those programs, some kind of new stability that he might be able to buy time and both sides could feel each other out. he rejected that last year, so is almost a foregone collusion is going to keep going down that path. and it seemed obvious after the missile launch in the summer that, which was designed -- december, ready for the coming
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election, that he was clearly going to put a monkey wrench in interkorean relations. .. deterrent haag >> very good question. follow-up question? >> okay. >> thank you.
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i have a question. in south korea -- i have a question for cronin. you mentioned the change of north korea and the kim jong-un government, the korean -- the only solution to solve the nuclear problem in north korea is regime change. my question is what is the opinion of the united states government, especially the state department? >> thank you for your question.
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i am not here to represent the government. i am not sure i can interpret the government's a position of regime change because it as an issue you will not hear the government talk about very often. is an issue policy has run away from since the strong minded views in the early part of the century that came from washington that included a more vigorous willingness to accept regime change whether it was seeking regime change or not. there is a philosophical question, forget the policy question. i go back to the work of the new book anti-fragile 11, when you're trying to clamp down any instability and referred stability from top down, eventually it blows up. the only way to really make yourself anti-fragile and secure weather in politics or biology is from the bottom up.
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the united states policy in effect supports greater human rights, greater information flow, greater exchanges, greater economic opportunity and openings, just cannot really pursue that because the north korean government -- in a fact we a looking for a change policy in pyongyang. here's where history is a guide to. on the 60th anniversary of the armistice i don't think the north korean regime is capable of doing the economic reforms of vietnam or chinese economic reform is. they are going to have to have some pressure from bottom up to try to bring about the kind of change we need. if that will convince the kim family regime to change so be it. it does not need to lead to the downfall necessarily, that is
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why we don't have to answer that question, government or alliance or an intellectual community. i think we can just say this is what we want to see and we will find ways to make it happen. if it leads to change, china is better than watching these other nuclear threats grow, proliferate throughout the region, change your calculus, it is an old calculus. we need to stop this kind of growing nuclearization nation that has no place in the twenty-first century when there is so much information flowing around world that was cut out of north korea. >> thank you. chuck? >> partly on the theory that if you have a hammer everything looks like a nail. i will talk a little bit about your assessment of a role china might play in this and how we might influence china policy how
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much does the sharp deterioration in china's relations with the u.s. and its neighbors in the last couple years perhaps change the calculus? is it harder to have the luxury to support north korea? japan, south korea and others are much closer to the united states that pivoted towards asia? >> that is a good question. i go back to the concern there could be a dichotomy growing in the asia-pacific region over economic issues. if more asian countries see the united states as a security guarantor only providing defense and insurance policy but china being the economic future, we lose that gain in the long run. it is important from a u.s. interest when we think of our long-term interests this century in the asia-pacific that we shall we are multifaceted great power in the twenty-first century, not just the 20th century. and is a roundabout way of saying we don't want to put this
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issue with china so far. there are limits how far we want to push china. doesn't mean we should let all pressure on china. doesn't mean we should let them off the hook but we have to find as henry kissinger as an others suggested a cooperative framework to pursue our disagreements. i agree with larry's analysis that chinese policy has been going down this path. i am not predicting china changing its assessment, just encouraging them to change now that they have new leadership under xi jinping. it is important things like the issue you are talking about find as well the diplomatic framework. here is what the united states is pursuing, diplomatic answers, rules based answers to these confrontations and disagreements. we don't think japan and china are going to agree on the boundaries of these or the claimants are going to agree
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tomorrow on these boundaries or china is going to give up and explain exactly why the lines no longer applies. that is unrealistic but we can hope all these countries looking at these economic ties and into be tendencies--interdependencies but we want to make our disagreements peacefully. north korea is a different order of magnitude. is a real threat. this is where china will wake up and say this is different. we understand chinese and japanese are not going to agree on this island, but north korea's nuclear materials, that trail to iran, icbm will have more repercussions in northeast age and peace in the world. that has to be something rising
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china, more affluent china with a greater stake in peace and stability in the world this century has to see that as a future threat and i am hoping we have to make this case not saying it will be easy but something we should be trying to make because this is not a 0 sum game with china but maybe with north korea if it continues to go on its path. >> thank you. do you have anything to chip in? >> i wish i could be as optimistic that china will come to a senses regarding the north korean threat. after all north korea in recent years has been able, south korea, japan, why is it that china would feel more sympathetic to the threat to the united states? it seems to me one could argue
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that china welcomes the multiplicity of threats to the united states. it helps spread our resources, divers our attention, hasten our potential decline so china sees this in a long gain as they say, you play checkers, they play chess the worse than that. they see this over decades. if they perceive a north korean threat, iranian threat, threat from others, drain the u.s. will, an important factor in our resources, don't think they're too and happy with that. don't see that as a reason to change their policies. >> okay. larry. >> seems to me there are a
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couple things we can do that might receive a more favorable chinese reaction. especially strengthened the hands and influence and sentiments of moderates in china. first, i think we are going to have to immediately reply to the chinese position currently that the best way to deal with the missile test of december and the new nuclear test is to return to six party talks. the chinese have said this several times now. i think the united states should say to china we are prepared to return to six party talks but only on the condition that you are prepared to put some very
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specific proposals on the table towards denuclearization. you have to be more than be a nice hostess serving wine and coffee and buying chinese food at that six party meeting. china must put concrete proposals on the table this time. we need to know what those proposals are going to be in advance and we will determine whether those proposals are constructive enough to warrant resuming six party talks. this is what i think our position not to be as a proposal to resume six party talks. secondly, in terms of a new agenda towards north korea, i think one element of that has to
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be conditionality with regard to food aid or any economic aid whether it is from the u.s. south korea or japan. conditionality for north korean commitment to real economic reforms. we ought to put those proposals in language of chinese style economic reforms starting with as a condition for any future food aid, chinese style agricultural reforms. we ought to propose this to the north koreans and make this clear publicly. this will to some degree embarrassed the chinese leadership. we are talking about what their predecessors did in china more than they are talking about it
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or pressing north korea to do these things. i also think that would appeal to the moderates in china and strengthen their position. if the north koreans go ahead as we all agree with warheading in the near future we go back to what patrick talked about, offensive containment. this will involve things that china will not like, but in that context soviet. these things will have to be done. in terms of enhancing deterrence or offensive containment. we need to let the chinese know that if the north koreans move ahead now with warheading we are prepared to take these steps regardless of whether you like it or not. this is going to be one of the
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consequences of your permissive attitude toward north korea. so i think our messages to china are going to have to be mixed with some positive elements. i encourage them to shift, track a little towards north korea, strengthen the moderates but also laying out to the chinese that there are going to be consequences that china will not like in terms of how we are going to react to a north korean nuclear warhead capability. >> thank you. and now pessimists' joe and obsolesced patrick and larry seems to be in between. the floor is open. >> international terrorism
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studies. larry, what is your view on the assumption that north korea already has a compact nuclear warhead in the intermediate range? >> this is what david albright recently wrote about, has believed in this for a couple of years. i did a paper that was published and sold in december of 2011 and i sent him that paper that north korea did have the technology to move quickly to produce a iranian nuclear warhead for the intermediate range missile. as soon as they began to produce weapons-grade, highly enriched uranium, i think at this point it has been over two years since
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dr. hecker was shown what he was described as a sophisticated uranium enrichment facility at pyongyang. u.s. and south korean officials have talked more about their belief and knowledge apparently now that north korea also has other more hidden uranium enrichment facilities in the country. it is hard to include after more than two years since dr. hecker's visit to that facility that north korea has not enriched uranium to the point to make it weapons-grade. i think they probably have. if we find out as patrick talked about, that the nuclear test of a few days ago was a uranium test, then we would have the
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proof that they are producing highly enriched weapons-grade uranium. once they have that again, a highly enriched weapons-grade uranium, i think given the technology, that they acquired conlan and the actual experience with a.q. khan in producing the iranian nuclear warheads for the missile in pakistan, a replica, the original quarys work nod s nodoks. it was the floor of the a.q. khan work in producing those warheads. they have the technology to move ahead rapidly. to produce warheads for the n o nod nodok. will they do that after
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producing highly enriched uranium? we don't know. i think they will. but they may be so obsessed with producing a warhead first that they can mount on the long-range missiles that patrick talked about that and strike the united states, they may have such an obsession to do that first that they may put all their resources into that and hold back on developing a warhead for the d nodo nodong. i think they will move quickly to produce a warhead but there is this other option for them if they are so obsessed with being able to strike the united states first and that is the big question where they're going to go from here with their nuclear
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program. [inaudible] >> consulting international liaison, independent. when discussing the diplomatic and political aspects of tactics and strategies and elevating that discussion to policies and aiming at coming up with an analysis of the reasons why the actors have been acting as they have with regard to china, to russia, iran and north korea, the united states, the discussion has been rather precise. i would like to expand the breadth and perhaps the death of the questions in this discussion
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to include two organizations that played a role and in this one is the shanghai cooperation organization led by china in which both indiana and iran are observer attendees at the meetings. at the meetings they have come up with policies and responsibilities assigned to the member nations with regard to the future of afghanistan and other issues. the second is the collective security treaty organization. military counterpart to nato and russia's lead role in that. i think if you consider these organizations the question arises, why do we have so much
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trouble figuring out china's motivations and russia's motivations and what are behind the strategies, because russia and china respectively could in these two organizations leap from behind and have either member organizations affect outcomes of such talks as the six party talks and other negotiations. i would like to hear some more thoughts about ssto and the sco, their members, how that might make it a better analysis or more difficult to do the analysis in the subject we are discussing. thank you.
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>> anyone? larry? patrick? joe? >> it will come out. come away to nato. a okay. okay. okay. >> this is a very limited reply. you mentioned iran's involvement in this organization. perhaps that is symbolic. not only does china view north korea as important to it but china has a stake in iran. iran is of some significant importance to china as well including not only the bilateral relationship but also iran's influence in former soviet central asia, the whole muslim issue in china and china's
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concerned about its muslims in s sinchyon province and the identity those muslims have with the muslims in the former soviet central asian republic. this is important to china. the negative aspect of this with regard to iran is it just creates another incentive for china to take a passive attitude towards the transportation and communication and financial dealings between north corey and iran, all of which are enabled by chinese passivity with you are talking about air flights between tehran and pyongyang or
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other communication across asia. i also think chinese banks are used by the north korean trading companies to facilitate the flow of money from iran to north korea. i'm convinced chinese banks take a role in that, patrick alluded to chinese banks. this makes it an even tougher problem for the united states to deal with, frankly. this organization, trying to symbolize this. >> from your own recipe, answers to your own questions? >> it seems to me in discussing
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some of these issues it is important to have other faroe analysis and that means that analysis should include peripheral kinds of influences and one should look for key events and they are not always what seemed to be in the mainstream of the analysis. there are events that don't seem so important. the back door kind of activities and sometimes those can explain very much why someone, why a country is taking a certain action or a certain position. if united states, just one
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example, if the united states in negotiations with china, was earlier stated that you have to be more accommodating on some issues than the issue you are negotiating. where do some of the pieces of equipment that go into american military weaponry and aircraft come from, where are some of the parts manufactured? china is a manufacturer and has technology that the u.s. buys. is that a factor? that may be too specific to give an answer to but factors like this need to be considered and are very often not surfaced in
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discussions and analysis. >> thank you. >> very important point in here. our analysis was very narrowly framed but that is panel discussions oriented towards generalities, not detailed analytical framework you might see in academia. geopolitically, we can read george friedman and robert kaplan for instance, china is an emerging great power wanting to both go toward an old silk road and out to the blue water navy, into the pacific and indian ocean. something like the shanghai cooperation provides a political network and framework for reaching inland across eurasia and that is important and a network for supplies, information in a global market,
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there is no doubt. is hard to comment on illicit transactions, beneath the radar. that is why we have intelligence agencies watching these transactions and talking about them. russia is in a different situation from china, russia is trying to klink to major power status and played much shorter-term rolls with a lot of activities not wanting to go away, trying to -- fuelling so much corruption. russia has a very different game to play here. we would like to see russia play a helpful role rather than missile technology which is the basis for the next missile launch we may see out of north korea. there is no doubt globalization, the rising power, trying to keep power in the case of russia is
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affecting the leadership decisionmaking how they think of north korea. let me bring it back to one point in china, i don't think china is going to cooperate with the sake of north corey's issues. that is to say if they see the united states going in a different direction in terms of rebalancing and supporting japan, they may decide we are not going to cooperate with that in the united states because that is not in our chinese interests. we are trying to convince the chinese we are not against rising china. we want a more prosperous and free china. we are not looking to create fights over things like territorial -- this issue of north korea is a growing
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military security threat to a rising china. i go back to lee kwan yu's book, published by harvard center, that selection, i use it as a baseline to think what is his analysis of china, the one chapters of very easy read based on his wisdom over the decades and thinking of china and trying to balance the the interests of asia -- asia-pacific in rising china and hopefully balancing. he talks about china playing a very long game as china -- as joe talked about. one thing that peaceful rise to happen and what happens with north korea is north korea rather than allowing china's peaceful rise is putting china in a difficult position. is hard for china to ignore given the power it has now, given the wealth that has, the openness for it is hard to
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ignore the kind of instability that comes from a young leader defining the world, blowing up nuclear devices, getting ready to create a nuclear icbm. even that particular issue does have a lot of political pull even though you are right, there are geopolitical broader considerations that are always going into every decision. >> quick response. >> how you might influence -- pushing china on the notion that it should favor dang joo kim kind of approach. there has been a lot of hatred that. china has supported that on a couple occasions, crashed and burned badly with the entrepreneur on corruption charges. put to patrick's last point getting to another piece of the way to sell this to those who might push for change in north
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korea, prominent public intellectuals on this public, mostly at the school of national studies, question what influence they have but the agenda from those people and people in government who shared their views is it is costly to china to appear to be out of step with world opinion in a profound way. the crazier north korea gets the more it is an albatross across china's agenda looking like a responsible stakeholder, don't know how much is window dressing, that is an argument that has some fraction. so too does the argument that china needs to take on broader response as a stakeholder but china has opened itself as a rising power, aspiring super power to greater tolerance for
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intervention, reduction in what has been a chinese position about the black box of sovereignty, china little bit on iran and sudan. the farther you get from china's borders the better it is, the greater openness where we have had extremely rigid positions against international action purported to question what countries were doing at home and this is a relatively easy one because china has a fairly embedded foreign policy legacy of not having the u.s. or others dictate to others what their domestic orders should look like but when you frame it in terms of threat to international security becomes a more saleable version so there are some small hand holds. don't know how far they give you but it is -- that is somewhat a better record louvain saying you should follow the model if for no other reason than skittishness among reform oriented chinese among the china model if china tries to export a chinese model of development what happens when it doesn't
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work? they get blamed. this stopped power debate in china although there was much attraction to the suggestion china was a better partner for developing countries and less intrusive one when you get into the more detailed version they got very squirrely. >> you are leaning toward an optimistic view. mr. pessimist joe. >> patrick and jacques make excellent points. they are so good that henry kissinger made them in 1994. we have been talking for 20 years about how it is in china's interests to moderate north korea's behavior but china sees china's interests differently
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from the way we see china's interest. hopefully that situation will change but i am not encouraged by the performance of the last two decades. >> thank you. okay. >> would you please go through the microphone please? thank you. >> i think china is a key player but as larry pointed out, the moderate chinese is emerging or growing. how do you see this moderate chinese political force making the inference to the new xi jinping government? even with so-called traditional communist party leadership, challenged by the moderate
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people as you see or in the near-term or the long-term, i assume, the cuts for revolution, generation coming up, china will, democratization process in the long run. do you see the trend in china toward a more moderate majority in the near-term? a little pessimistic longer-term? the other one is -- north corey at's nuclear arms cann 's nucle checked by south korea putter is sympathetic north korean forces. i don't think the government can
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hit north korean bases before it acquires nuclear gun or forces. i don't know if the u.s. can hit north korean bases before north korea reaches the critical stage before nuclear proliferation. that is my question to you. >> thank you. larry? >> if you look at the role of chinese moderates, these are people in the media and in the think tank community and the university's ian china. there has been a pattern in the
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past in which north korea has done certain negative things and these people have become fairly vocal in criticizing north korea and suggesting that china should begin to reduce support for north korea. when an episode like this has happened in the past, after raise certain period of time in which these so-called moderates and express their views, chinese government then shuts them down for raise certain period that can be many months or perhaps a few years. then you have the pattern resurfacing in which north korea commits another negative act, moderates vocalize their
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displeasure with north korea but after a certain period of time the chinese government cuts them off, tells them to shut up. i don't know that the chinese government can do this now, can really just turn off this point of view in china any longer. that is one, i think, positive change. is not a huge change in terms of overall chinese policy granted, but it is a small positive change. we should be cognizant and keep watching the relationship between the chinese government and these more moderate chinese. >> thank you, larry. >> let me make one point. you are talking about the idea of pre-emptive strikes against
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north korea. this came up when bill perry talked about consideration of a pre-emptive strike in 1994 against yongbyon and it has come up from time to time. the problem has always been north korean artillery threat to sold --seoul several long-range north korean artillery pieces and multiple rocket launchers that can destroy the city of seoul and a matter of minutes or a few hours if the north koreans unleashed this weaponry. and they have this kind of deterrence to threaten us and they have had it for a long period of time and we are very
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cognizant about this. another related issue is once north korea malanounts nuclear warheads on its missiles how will that affect the retaliation policy established by the united states and south korea in 2010 following the shelling of the yongbyon island in november of 2010? policy that in a future south korea would have the right to retaliate militarily if north korea committed future provocations and the u.s. was warned? that kind of retaliation? what is going to happen to the
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u.s. and the are ok attitude toward the retaliation policy once north korea has nuclear warheads on its missiles and can threaten to rain and nuclear missiles down on south korea if south korea does retaliate? how are we going to react to this kind of scenario, which i think we will face once north korea has warheads on those n o nodong missiles. there's another issue we have to face coming down the pike in terms of the situation we are going to face. >> rok and the u.s. are moving ahead on that. it is all about nuclear north korea, the fact that the korean government is looking ahead toward accelerating the deployment of their air and defense nuclear missile system is designed to potentially help
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the u.s. and others in the region to shoot down a missile that -- trying to protect itself from nuclear icbm or intermediate range missile in the future. there may be no easy pre-emption angle. there wasn't for the united states in 1994 either according to secretary perry and others who had to work on that. that is never an easy issue but you need to strengthen your defensive capabilities, taylor and adapt deterrence to a growing threat. >> okay, jacques. >> the new chinese lea get intoe
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national hu jintao to:of flak for being weak and foreign policy, not stand up for china. ten lost years of leadership but what does that mean? on one hand that suggested is not a moment ago soft. on the other hand most people who do the chinese equivalent of criminology or something, seems to be a more formidable
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individual. he has more ability to do what he and his immediate colleagues see as in china's interests. if they perceive certain changes it is what we have been talking about here, there's more capacity to bcu the system than we have seen in the last few years. >> roland wilson, there has been some great comments today, probably no wrong answer has been given. they are all right in there and respect. mine focuses on policies toward north korea. we talked about an offensive containment policy which could be termed a short-term policy for the time being. we have that in the past.
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and on the peninsula, and allegedly to take on nuclear weapons. and in the 80s, we exercise great team spirit, great exercise in deterrent, we brought that as brinksmanship with north korea to get rid of nuclear weapons and that didn't happen so we have strong containment or strong capability before and slowly let that slip away. bringing it back is a good portion for the short term to maybe help mold things within north korea. we also have to look at long-term policies for north korea and you hit on a main term about getting into the north korean people the informations that when we talk about bringing down a regime or a regime falling or changing, from the top down normally it only works as we have seen in the middle east, is reformed by another regime but from the bottom-up
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talking about social mobilization and collective action from the people fed is the kind of investment that is worth making over the long term because the people of north korea will make change based on their need for food and stability in the region. regardless of what is going on in washington d.c. how do we do that maybe external to direct lines with the government or north korea? that is the question i have. one thing on conditionality with aid from north korea that is wrong from my perspective. when you put conditions on the asian perspective with the difference in policy, the difference and difference between collective societies and ones like we have in the united states they look at things very differently. in addition to that, when we tie aid which is humanitarian in
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nature as a stick policy, are we not in turn doing something almost in the same terms referring to the north korean people as humanitarian needs to north korean people as well? >> pat? joe? chuck? anyone from the floor? at. >> i want to try to amplify some of the ideas of using information, easier to talk about in general than give specific examples and we are not trying to excite other countries like china. we're trying to encourage change. from thinking that we are looking for regime change. the reality is we need change in north korea in the long run and radio is one of the means, information technology coming through some drives, dvds,
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disks, it is reaching the 5% believe, having to reach the middle of north korea if there is such a thing in terms of labor, they're trying to prevent these things but at least recently, there's a growing sense of pressure it seems from the economist's recent article, the cover story, the analysis, things are seeping through the curtain. there's a push from the elite for coming information consumers, they are addicted to the south korean soap operas. that does not sound like democratic reform and peace and stability in our time but it is a start. it is starting to say even in their propaganda, the chairman talked-about, where they had to
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show the manhattan skyline and propaganda purpose even in that. is that your aim in life? to put a nuclear missile on economic prosperity and freedom, i don't think so. we can ultimately get information. the gulags in north korea are the darker side of this. letting information flow into this country about the oppression that exists. your people being killed according to the latest data base, that is good news that there is more and more cases of liberty being taken away and censorship. getting that information deeper into north korea into china's borders, over the airwaves, through information and exchanges will force north korea to enter this century. it will all come down. this is an artificial thing. they can show up with a cyberclass but the reality is that information is going to get in and flow because people will come and go.
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they need exchange of some sort. it is coming in across the border from china in the southwest and over the bridge. that information will get in to north korea and i think it will have a change. i studied the industrial complex of next record because the north korean regime had a big level is too much price going to the regime. the good side of it has been south koreans have related to me many many times, the information has changed the hearts and minds of the people who worked there and their families. that is more of an elite middle class, the top 5% north korea than the bottom 95%. with cellphones entering the country they have to talk about something. talking about the latest gulag or this is kate, this is another
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question, one last point, the diaspora. the north korean refugees. we ought to be pressuring china. protesting china's intentions. going to other nations and pressing china to accept the refugee camp in un auspices in china. that put pressure on them. if we want to be part of the international community is important but let's test. i'm not up to miss that i'm not a pessimist. i'm trying to push what is in the interest of the region. that could be another answer. thank you. >> quickly. [inaudible] >> an article just recently about how your can play a
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significant role. we are hamstrung. washington is not going to let up on the administration and say do what you want with north korea. canada, europe, other asian countries are on the front lines of engage in educational exchange programs, governmental and non-governmental, academic programs, they are exchanging. we ought to be working and mobilizing and supporting and bringing change even though we know a lot are corrupted by the north korean government, you have cyberskills? hack into the defense department of the united states. we know that. be careful what you are choosing to support so that information will transform north korea over time. >> ten minutes, jacques has been generous and patient and now it is all yours.
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[inaudible] >> okay. let's give him a quick pit stop. >> the associated press reports today the obama administration is developing more aggressive responses to the theft of u.s. government data and corporate trade secrets. report being released today considered issuing fines and trade actions against china or any other country guilty of espionage. the plan spoke on position of anonymity. and speaking about the threatened action. this is in response to accusations of cybertheft to the chinese government over the weekend. former cia director michael hayden spoke about this issue yesterday. >> standing policy, i talk about china, china is not an enemy of the united states. there are no reasons to become an enemy of the united states. the logical not heroic policy choices to the chinese and ice to keep them competitive,
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occasionally confrontational, never have to get to the level of conflict. that said, i told you about chinese espionage and more broadly chinese cyberbehavior is very disturbing and it should not be allowed to stand. the president used the same we did. there is an espionage danger and the destructive danger. >> we could be facing a cyberpearl harbor. do you believe that? >> i don't choose to use that phrase myself. there is cyberdanger. i should have made that clear already. cyberpearl harbor is too easy. let me give you the dialogue. we could be facing a cyberpearl harbor why? why hasn't to happen? >> what do we do about it? >> i have to answer the question
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-- i don't have a good answer. i say there are great dangers out there and i fear the chinese president on these networks. is a matter of great concern and we ought to do something about it. want to talk about something? what can we do? number one, follow the advice my dad gave me when i was nine years of age after losing a fight, quote whining, act like the man and defend yourself. we can be more robust in defending our networks. that is one. we can make it much more difficult for others to access things that we consider to be of value for us. secondly, i would suggest, and you saw that in the new york times piece today, that we make chinese cyberbehavior part of the overall portfolio of our relationship with the people's republic. i am calling them an enemy, but
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not to pattern behavior in this one lane that is so disturbing for us that if that pattern continues we should make it clear to the chinese that that will begin to affect all of this. >> what does that mean? that is the threat you have to be prepared to follow through on. what do you connect it to? they are holding $1 trillion worth of our debt. >> don't mean to be blase about this but makes them dependent on us as we are on them. that is a wash. >> what do you do? they keep doing it, what is the consequence? >> china depend on us as a market. >> what we do? stop buying their televisions and i phones? >> why not? >> you are going to stop buying their iphone? >> start pricing out. they stole the design, it looks just like the u.s. company that went out of business last year, looks just like what they used to make. why should we allow them to export that to the united states? why should we allow chinese who are participatory in this to
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come to the united states? we can control who gets these. there are lots of things, lots of ways we can make this relationship less comfortable to them. this is important and i think you and i agree that it is you have to start taking action. are they painless? no. you asked my view. >> former cia director hayden spoke in washington. the obama administration is expected to announce new measures today including possible fines and/or trade actions against china or any country guilty of cyberas the not. officials spoke on condition of anonymity because they were not authorized to speak publicly about the transaction. attorney general eric holder has a briefing scheduled on this later this afternoon. the defense department is holding a briefing today on civilian furlough. those sequester cuts hitting on march 1st. we have live coverage of the news conference starting at 1:00
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eastern. auld this week the u.s. senate is on its presidents' day recess we are focusing on booktv and prime time. tonight at 8:00 eastern memoirs and biographies beginning with supreme court justice sonia sotomayor. and 9:25, cynthia helms, will a former cia director richard helms remembers her introduction into the world of secret intelligence. at 10:20 eastern the life and career of "national review" publisher. william rusher. ..
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>> we have shortened the board meetings considerably. we have stayed away from the details and did not get on the weeds on how you build a car. the bigger questions of financing. the board was very supportive of that. we kept them and form and we took off. >> leading general motors through bankruptcy. ed whitaker on "american turnaround" on sunday night at 9:00 p.m. on "after words", part of booktv on c-span2. look for more booktv online. like us on facebook.
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>> the supreme court talked about drug sniffing dogs is a sufficient cause to search someone's vehicle. justice elena kagan is the question as to whether the dogs alert the officer for contraband of the crime. we have the oral argument of that case it was presented last october. it is just about an hour. >> hello, welcome back. the question in this case is when do the drug detection dogs give probable cause to search the vehicle. the florida supreme court answered that question with an extraordinary sense of
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requirements in which the defendant chooses to rely upon the reliability of the dogs. the supremes court decision, in this case, what this case can be referred to as a substantial warfare probability of contraband or evidence of a crime, and a continuously updated average that the dogs are considered infallible. >> the other requirements and field performance that we detect, it seems justifiable. [inaudible] it seems to me -- that there is
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nothing improper about that. >> your honor, i would like to ask if it's okay to inquire with whether the dog has successfully completed a bona fide training program. in which the dogs will be tested for proficiency, including in a setting where some vehicles are tested. in this case, the dog received a 40 hour seminar at police department in alabama and they were subjected to continuous weekly training. that consisted of vehicles. it would officer wheatley, all of the training was said to have been good. >> why did they get the dog
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recertified? at the time of the search, the certification had expired. >> the dog was recertified and the board does not impose annual certification requirements. some states don't require it. in this case, the dog was continuously trained and evaluated. >> what do you have to show to establish that the dog was well-trained? >> well, i think that the most important thing is the successful completion of efficiency testing. what our friends in the florida supreme court would like to delve into is all aspects of the training. what types of distractors were used, dashed. >> you have to show that the program was reputable. >> that is right, it was certainly authentic, your honor. the programs were conducted by actual police departments in florida and alabama.
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they have regularity in those sorts of trainings. [talking over each other] >> those training facilities were private institutes that were contracted? >> certification usually is done by private entities, which are operated by former law enforcement officers. but the training itself, it is usually done by police departments themselves. >> can i go back to justice ruth ginsburg's question. what i hear the florida supreme court's saying is there is no national certification for training. >> that is correct. >> there is no national standard that defines the training. >> that is correct, that is right. >> let me finish my question. so assuming there is no national standard, how do you expect a
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judge, without asking questions about the contents of the certification process, the contents of the training process, and what the results would and how they were measured -- how do you expect to judge whether the certification with the training is sufficiently adequate? >> i think that the central inquiry that we look to undertake is to determine whether or not the dogs was performing successfully. after all, that is why we train the dogs. >> the judge still has to determine whether the judge believes it is adequate. is that correct? >> your honor, in our view, we do not think it is an appropriate role for the court
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to talk about the contours of training, what specific methods were used to train and all the contours. >> what does the judge do? they say that this is adequate, so i have to accept it? >> you do not have to accept it. i think this record is clearly sufficient, ultimately that is what we are asking the court to uphold. >> mr. greg garre, i have no problem that this record is this record. but my question is it seems to me that i am not quite understanding the legal rule you are asking us to announce. i think what you are saying is that the dog has been tested for proficiency by a police departments determination of what passes for proficiency. and that establishes probable cause. that is what i think the rule is that you want us to announce.
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>> we would ask whether or not the dog successfully completed training by a bona fide organization. >> no certification, no questioning of the handler or the handlers training? the judge can't do any of that and shouldn't do any of that. >> certification is not required. it may be one way that the police department could establish reliability. but certain certification itself is not required. we do believe that we can ask certain questions about reliability. in a record like this, the judge will say, okay, you must complete 120 hours with the police department and 40 hours -- >> it's not enough for you to try to get us to say that a court can't insist on
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performance and field efforts, and it has to look at the totality of the circumstances. what other case have we announced under the totality of the circumstances? and absolute flat rule like the one you are proposing. where else have we said that one thing alone establishes probable cause? >> your honor, one area where the court mention this and talked about the importance of clear rules for police officers -- >> i suppose it is the reasonableness of the search that depended upon evidence given by a medical doctor. the court will not go back and examine how well that doctor was trained, at harvard medical school and what classes he took and so forth. is that right? >> absolutely.
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in the same way that an officer provides evidence with a search warrant, we do not ask the officer of what specific courses he took. >> use of the certification training program. otherwise, listed as proficiency. there is no certification, no training. so how would the state establish that the dog is reliable? >> your honor, that would be the case captured by the other factors. there is no agreement on the types of evidence that police could submit to show reliability. if you didn't have certification or a formal training program, the fact that there is evidence that the dog successfully performed weekly training over the course of a year, and the police submitted records, and in
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this case, that might be another way of establishing reliability. [talking over each other] >> and what about the handler as well? >> well, your honor, we believe they -- [talking over each other] >> but i'm talking about the handler -- >> that is correct. the officer in this case has been trained. he had 160 hours in training and done so with the alabama police department. officer wheatley worked together before the time of the search. the handlers themselves know the reliability of the dog. we have a strong sense to make sure that the dog is reliable.
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they do not want to be put into harms way. a traffic stop is one of the most dangerous encounters the police officers face. they don't want to be working with the dog that is consistently putting an officer in a position of searching cars when the dog is not liable in predicting the presence -- >> i am somewhat troubled with all of the cases that were presented to the court. particularly the australian one. in one city, one dog alerted correctly only 12% of the time. how and when and who determines when a dog's reliability and alerted has reached a critical failure number? what do you suggest that number is, and how does a judge determined that that is being monitored? >> we don't think the fourth
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amendment puts a number on it. >> i am troubled by a dog that alerts only 12% of the time. whether we have a fixed number or a fixed number, that seems like less than probable. >> let me explain on one side. over the course of several years, the dog alerted and discover drugs 20% of the time. but there is another part of the study. that was 60% of the other cases. the individual had a proximity of drugs. and the dog was able to alert as they should. then the number becomes 70% based on primary study they relied upon. >> that does not address what
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happens to the dogs alone. so how is a court supposed to monitor whether or not a dog can smell out the drugs? >> well, you are right. dogs, like humans, become old. but in this case, weekend and week out, dobbs performed training. i think the most challenging probabilities is that law enforcement agencies, law enforcement agencies around the world and law enforcement agencies to protect his court this court rely on the protection of dogs is reliable predictors as the evidence of contraband and the presence of explosives and likewise. this is a scenario where we think that it is a serious work
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and the histories worth of logic. in many studies across the country and across the world today, the reason they are being used is because the people who work with them know that they are reliable and know by experience they are reliable. that is one of the central problems that we have. ultimately, this court should trust the reliability of the dogs. >> i would like to understand your argument because suppose the government comes in and does training with a dog and the handler. in regards to narcotics, it's only going to come up in a case like this. so the person ends up being criminally prosecuted. it is a small universal case.
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so the government comes in and says, that the dogs has been trained. and the criminal defendant, can they say, how has the dog been trained? and how the dog do in doing training? can the defendants do not? >> i think the defendant can call questions. we are talking about dissent and printed training. it was done here. >> how about if there were articles that said, you know, that there was a certain kind of method that led to a lot of subconscience behavior by the handler. could the criminal defendants say, did he use that method that leads to problematic results?
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>> i do not believe so. the argument is that the dog is inherently reliable. >> i know there is no intentionality, but one thing that i've learned and reading all of this, one difficulty is that dogs respond differently to the training that make up less or more of a problem. >> our position is that you can inquire into this during the hearing. the defendants can argue and in the course of the argument, that is certainly a challenge. it wasn't a challenge in this case. i would like to go back to the premise of your question, which was that the dog did not accurately alert. in this case, the dog accurately did alert. [talking over each other] >> i think that is another problem with the supreme court decision.
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this notion that are not indicative of the dog's reliability. in this case, the dogs alert was just as important. thank you. >> mr. glen gifford? >> this court has recognized the reliability of dogs is important. >> i am assuming that your position is, and you will tell me what the legal standard is, that a well-trained dog, if he alerts a row of houses or
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apartments, and he alerts the that there are drugs, that that is a possible probable cause to search? >> just come about as direct. >> unlike the earlier case or this one where the police officer saw the individual being nervous, etc. despite the fact that there is no study that says that dogs reliably alert 100% of the time. >> 100% of the time is not required. the probability standard is not required. that was the fundamental flaw of the florida supreme court. infallibility is not required. in terms of studies, there are studies. >> shouldn't we be addressing
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the question whether an alert, especially outside a home, should be standing by itself? >> i think what the court questions is how you determine reliability. this is a somewhat unique setting where a law enforcement tool is actually tested. initially and on an ongoing basis in a controlled setting to establish liability. you asked what the standard is for bona fide trend. the important point is the outcome of the training, it is the dog proficiency. can the dog detect drugs? that record is established. >> only because the officer said that he satisfactorily performed. what the florida court says, we don't what that means. >> i think we do know what it
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means. there is a formal training in formal certification, both the dog and handler, separately and eight formal training together, just as important, you have ongoing but less formal proficiency exercises conducted by the handler, in which the dog, in a controlled setting, performed quite strongly. including today's before the arrests here. that is on june 22, the dog performed perfectly in a controlled setting. the records going back to several months before and after the arrest, showing that there's dog was reliable. >> you agree that that is an appropriate area of inquiry? >> yes. >> this dog went to the school, was certified and was tested. when did you last go through
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something? >> yes, the judge can ask those questions. >> the only thing that you say that they can't ask about is about the record. >> there are a couple of issues here. the florida supreme court was composing evidentiary obligations are part of the government's affirmative case that the government always has introduced probable cause based on a dog alert. the question of what the government -- what is a fair game question to ask is a different question. >> thousands of times and thousands of cases, they ask whether or not the trial judge made a correct determination in determining that there was or was not sufficient cause for
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police to proceed. it happens every day. >> the critical aspect is the dog's performance in a controlled setting. >> okay, you criticized the florida supreme court is requiring evidence of skills performance. assuming that the evidence is not required, if the defendant is appearing for this motion, would it be proper with the information that is, for the defendant to speak on whatever field performance records there are? >> we do not believe so. especially not on a routine basis. we do not think the burden is justified. a separate question from whether that defendant can ask the
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handler if the handler is on the stand, about performance. the court can answer it that whatever way is appropriate. typically it is not going to be material or helpful. but the problem is in the field, the dog is trained to alert by the odor of drugs. it's like a batting average. how it is calculated. but we don't know the fraction, we know than numerator, but not the denominator. we know and we can calculate a reliable batting average. that seems to be the focus that is reliable in determining the reliability of the dog.
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what matters is is the dog successful in a setting where we can measure success? i think it is also important to point out that the florida court was basically alone in establishing these unprecedented and inflexible set of evidentiary requirements. there is a large body of case law in the lower courts about drug detection dogs that have to establish probable cause for a detection dogs alert. >> in the florida supreme court, basically what you think courts have been doing is the right thing. >> in general, there has been diversity across the courts. but if you look at the opinion of the judge with the jones case
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and the florida supreme court, you can see approaches where courts have confidence that if law enforcement comes in and says, is dog is trained and demonstrates proficiency, that dog is generally reliable. >> but there is no questioning of the handler and how the dog performed in the training, is that right? >> yes, those questions can be asked. but it's critical that the courts don't constitutionalize dog training methodologies and what is a successful dog training program. the government has interests that it states on the reliability is of these dogs. the tsa uses dogs to keep bombs off of airplanes. there are canines in the field in new york and new jersey
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looking for survivors of hurricane sandy. in situation after situation, the government has put its money where its mouth is. but these dogs are quite reliable. >> i am not sure it's relevant, but do dogs -- does their ability across the board, in other words, if you have a dog that is good at sniffing out drugs, does that work for bombs? >> well, the court explained the same general methodology and approaches used to train each kind of different dogs. typically, a drug detection dog will not be trained on explosives. >> can they be good of bombs but not good at others? >> i don't know the specific
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answer to that. once a dog chooses a a major, that's what they stick with. [laughter] >> so what about dogs chasing squirrels? [laughter] >> they pass their program of training, then they show proficiency on an ongoing basis, including in this case. thank you, counsel. >> mr. glen gifford? >> mr. chief justice, there is no totality of circumstances but just for probable cause is a warrant for search. if that is true, there must be and the fact that bears upon a dogs reliability and it comes within the purview of the court. it is in constant evidence of
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initial training, maintenance training, and performance in the field. >> you understand the government disagreeing with that general position? if you have an attorney that is concerned about the training of this dog? >> i do understand that the government can disagree about the relevance of field performance. specifically on the level of detail that can be required any of these elements. >> i thought he disagreed on what must be defined. i thought that was what it was about. >> the supreme court, in its opinion, were talked about what the state must produce. at first point, that looks rather digest it. however, what i think the florida supreme court was saying is that the records must be
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produced in line with the burden of proof. >> of course i agree with you that a trial judge must go to trial and know what is relevant. and they have first say on what they are going into. >> i don't believe that constitutional part of it. >> you don't believe in the constitutional requirements. >> no, i do not, even though they use the word must. i think that performance records and training records that exist are important. further down, the court said the reasons why the state should keep -- talk about. >> soon regards to performance,
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it doesn't lead to safety necessarily. is that correct? performance records are required. >> if the state does not seek performance records, that is a fact, that is a lack of evidence that can be held against the state in the hearing, and it shifts the focus onto providing evidence of the initial training and certification and the maintenance training that can show to the trial court that it is a reliable dog. >> understand that if the court was saying that you can't produce the dog's evidence, it would not be allowed. >> yes. the court did use the word must. but it is not a specific recipe that cannot be deviated from. in addition to listing the records that must be produced, the florida supreme court also
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said, and all other evidence that bears on the reliability of the dog. it is not a specific recipe. we are talking about of these records exist. >> with respect to the field performance records, they say it was not a requirement. >> i do not think they were requiring field performance records. >> but they outline what the government must do. that was one of the things. >> they said the government must produce if the records exist. but if you go down, the court did not just say because there were no field performance records, no probable cause, conviction reversed. no, what they did was take into consideration the lack of records. the lack of any records about initial training and
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certifications. aside from the fact that the stock had a certificate. this certificate was not only 16 months out of date, it was a certificate not just for although, but him and a deputy as a team. he was never satisfied or certified with officer wheatley. >> is that the case, that the training doesn't count unless it's training with the officer who is using the dog? >> no, but that is an indicator of reliability, which is the ultimate test here. >> council can bring that up at the hearing before the judge. i understood this to be a requirement. you never even get to that hearing because there is no evidence for this dog has ever trained with the police officers. >> that is correct. there is no such evidence.
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>> therefore, end of case? >> no, it is not the end of the case. you must look for other elements of reliability. >> officers have been working with dogs very often, they have been trained every week. why isn't that enough to show the handler and the dog were effectively -- i don't understand. >> this weekly training is maintenance training. it is to maintain the dog a level of efficiency that had not been established. the level of proficiency that had been established with officer wheatley and another seminole county deputy -- >> what are the incentives are?
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why would a police department want to use an incompetent dog? is that any more likely than the medical school would want to certified an incompetent doctor? what incentive is there? >> the incentive has to do with what otherwise would be available. >> is that the thing? >> is that a good thing? >> your probable cause, you wasted your time of the police officers. >> and you have invaded the privacy of an individual. >> maybe the police department doesn't care about that, but it certainly cares about wasting the time of its resources and officers. >> is a powerful incentive. the court has said spurting out crime is a competitive enterprise. >> officers just like to search. they do not particularly want to
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search where they're likely to find something. so let's get dogs that smelled drugs on there are no drugs. if you really think that is what is going on here. >> officers like to get probable cause so they can advance their career. >> they like to search where they are likely to find something. that only exists when the dog is well trained. they have every incentive to train the dog well. >> the question goes back to the reliability of the dog. what the officer can demonstrate in totality of the circumstances. >> i'm confused about the differences between must and is required. worth the hammer on her, this is where the dog went to school, it's a bona fide school, this is where they were certified, training every couple weeks or
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whatever it is. and the judge says, do you have any feel records. the officer says no. then the judge says, no probable cause. that is a reversible error. >> it is if we know what went into training and certification for without training and certification sufficient, it would include the use of links. >> you have experts testifying what constitutes a good training program? >> not necessarily experts, that the officer who participated and can testify as to what he and the dog went through. >> i assure you that if we agree with you, there will be a whole body of experts that will spring into action about dog training. i assure you that that will be the case. >> those experts are prevalent in the case law already. >> the florida supreme court
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counselor, to save the deficit and training records here was because there was no evidence of false probables, the trading reports to not save the dog was alerted falsely. assume that the record, as it shows the opposite, that it is not satisfactory completion and the dog detects drugs where they were. why wouldn't the training records here be adequate in those circumstances? >> that would be one of several that make the show is adequate. also, you want to know whether there were distractors used in the field. however, i do not believe that the record supports, and this is arguable, the maintenance training. all the state have an initial training with the deputy was a
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certificate. one certificate said this dog was trained. there might be with a police department for 120 hours. another certificate thing that this dog were certified by narcotics certification. >> what i am asking you is a matter of laws, would you like us to hold the training records are inadequate unless you specify a list of things that have to include? >> this court, and a number of circumstances, has provided examples that can guide us forth. the evidence can be so strong -- the court pointed to what can be relied upon, such as the winter
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climate. >> council, you are defending ace florida supreme court decision, which is a must. you can't just say that i am not asserting any particular thing that's necessary. just totality of the circumstances. you have an opinion in which the florida supreme court says it must include, you know, the filtrate. do you disavow that or do you want us to ignore it? >> that is not the holding on which i relied. the holding on which i am relying it is that training and certification alone, the mere fact of training and certification alone is not sufficient to establish the dog's reliability. and as for the language about must come of the florida supreme court is not just want to say that the failure to do one of these elements, it can be engaged in the totality of the
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circumstances. several courts applying that have reached the same conclusion. into the cases, dashed. >> it is absent in the totality of the circumstances and nonetheless, hold it responsible cause. if so, then the word must does not mean that must. >> it means must the state that the state has the record and the record exists. >> it is listed along with training. including records of field performance. >> i read that it was records exist, the state must be that. it bears the burden of proof, and it is the only party that can produce the records. >> what if the dog just completed the training course? there is no field record.
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>> if the training is sufficient, if it has those elements that demonstrate that the dog is reliable, those are the circumstances. you have the totality of the circumstances. but they do not include any field performance. the trial court can find the dog to be reliable. >> what is wrong with the state's but the performance arguments are not probative. but they don't detect physical presence of the substance that created the order. or cases in which the search was performed and contraband was found. they are not really cases to follow. what's wrong with that? >> you don't know if they are false alerts or not. the state will always point to the possibility of residual odor. we know from the studies of the other reasons that dogs alert
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when the order cannot be verified. simply, dogs make mistakes. they get excited and will alert over things like tennis balls or animals. >> that could be true, but what could one and for from the death of jeremiah mckay were no contraband was found the explanation could be the dog detected an odor but the substance was not there or the dog was confused with the dog was not very competent. what can one infer? especially in regards to performance records? >> what you can infers that this dog is not an accurate indicator of probable cause. it is probable cause as to whether drugs are likely to be found in the search that follows an alert. >> they are unlikely to be found if there is a residual order of
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drugs, you've got the drugs are no longer there. it is not an incompetent dog when he alerts. because of the residual odor. >> but if the dog has previously alerted and no drugs have been found, because of the dog having hacker activity, the next time that that dog alerts, it is less likely that drugs will be gone. it goes through probable cause measures, rather than the likelihood, the reasonability that drugs will be found. >> council, what about a police officer who comes to a car and smoked marijuana? he will never know whether there is any more in the car. whether the person smoked up an hour before -- i don't how long it lingers for -- but i am not sure why residual order affects the reliability of the dog which
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is the point of justice scalia. the dog doesn't actually know whether it is physically present or not. but we are talking about probabilities. >> that is correct. the difference is the police officer can describe what he has smelled and he can say that he smells marijuana. all the dogs can say is that i smell something that i was trained to detect. but getting to the issue of residual order, our position is that an alert where no drugs are found, it means that it detracts from probable cause in that area. that is not the only thing available to the court. residual order -- it is something that can be litigated in one of the lower courts. the court looks at the field performance records and found
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several of them well supported on the issue of whether the alert was probably found. another possibility dashed. >> where nothing is found, how can you tell whether the dog alerted to a residual order or simply made a mistake? there could be cases where there is other evidence suggesting drugs were present in that location. therefore, it's something that you could infer that the dog was according to residual odor. the fact that you don't have evidence to back, it doesn't mean that it was a residual order. >> no, it is not. but if you go back to probable cause measures, i believe, the court did not demand evidence of residual order. what it says is that the field performance records exist and the state can explain unverified alerts and then a court can then evaluate them.
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>> what is the magic number? what percentage of accurate alerts or an accurate alerts is in another probable cause? >> sport has always hesitated with probable cause. in lower courts, once you get below 50%, it is more likely to be found, assuming that there is no other reasonable suspicion factors. >> i would like to talk briefly and what the supreme court in florida briefly that. in the foster case, the order of the supreme court had a dog the trained initially with the same handler, unlike here, where the evidence was very strong as to the futures of the training and certification program.
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and that dog had a 66% feel performance record. foster said the dog's reliability can be established by training, certification and performance in the field. but it did not show that performance in the field was the most reliable measure. but they have that 66% -- percentage. then there was a dog that trained with a different handler. the handler provided very few details about the training and certification and fostered the certification with an organization that provided a 90% rate. this officer did not keep performance records when the dog alerted and no drugs were found. and there was a heavy inference of reliability. in those two cases, it
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demonstrates what is the correct line to draw and in navigating what is reliable. >> on several arguments made by the state, the argument was the maintenance training included blinks and the dog did not alert of the blanks. the blanks were tested, the dog was tested on the blanks, but there was no testimony on whether or not they can alert you that. then the dog was subsequently recertified. the state argued in the officer testified that the dog was scheduled for another certification. but we don't know whether the dog was ever recertified. the court can uphold the florida supreme court simply on the failure of adequate documentation of certification and training. and on the fact that this dog was never certified with this
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handler and did not initially work with this handler. you do not have a dog that is reliable enough to demonstrate probable cause, and the florida supreme court cannot draw conclusion unless there are additional questions. >> so it could have been pointed to residual odor, or it could've been pointing to drugs inside the pickup truck? because the alert was this way, it is equally likely that there was a dust of residual odor inside the pickup. can please establish probable
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cause with police when the dog alluded to what was inside? can they alert anybody other than the dog handler? >> officer we we believe this was a residual odor. >> tadeusz. >> officer wheatley testified. i said that it may. this dog alerted to the door handle, and his prior experience when the dog alerted to the door handle, it means that someone who smoked or handle drugs had touched the door handle. now, officer wheatley testified that when he conducted a search, drugs were found in the vehicle and that was probable cause. but officer wheatley did not testify. there was insufficient evidence that this residual odor -- the
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residual odor of this nature supports probable cause. >> at least we don't have to worry about that in this case? >> not to my knowledge, your honor. >> so there was no probable cause because the dog alerted to the wrong part of the truck? >> no, your honor. >> was there any part of that? >> they were concerned about residual order alerting without any of that supporting probable cause. but the basis for the decision was the lack of performance records and the lack of records supporting initial training and certification to show that this dog was reliable. >> i suppose that you would say
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that the question is alerting to the door handle. was that enough to establish probable cause that there were drugs in the vehicle. >> well, i do not think the door handle itself is positive. i think it is the door handle and the lack of evidence that we have a reliable dog. the reason that you need a reliable dog, is that there are no standards of training and certification for initial training. some states have standards. training and certification. florida does not. and no standards for maintenance training as well. in order to have probable cause, you must know what that certification and training needs. if there are no additional questions, i will conclude. >> thank you, counsel. mr. greg garre, you can continue. >> this points not only to the likelihood of contraband, but
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will the likelihood of the evidence of a crime. that would include the so-called residual odor. evidence where someone has recently smoked or used narcotics in the vehicle. it alerts the residual odor of drugs. which is impervious to the question of probable cause as it relates to drugs itself. the fact that it alerted to the door handle of the card is not negated. the probable cause as to whether officer wheatley had the right to search. it could've been narcotics coming out of the area or someone who had used narcotics touched the door handle to get in and out of the car. also, you look at the controlled training environment. there is a danger that field performance records are in a
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permissible for a to challenge the reliability of dogs. as justice samuel alito pointed out, we did not know whether the dog alerted to these issues. >> would you allow the council to ask about that? >> at the vacant house, but they cannot demand the performance records themselves. officer wheatley and all of those trained together for nearly a year. they did complete the 40 hour dog detection seminar. as justice scalia pointed out, all the incentives in this area are in line with ensuring the reliability of drugs and drug detection dogs. it is not in the interest to
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have a dog that cannot find contraband or put the officer in harms way. the relied upon dogs, due to their extraordinary sense of smell, they have been relied upon for centuries. drug detection dogs and explosive detection dogs are valuable members of law enforcement today. we would ask the courts to reverse the decision and not eliminate a serious valuable tool. >> thank you. >> the supreme court ruled in unanimously that please do not have to extensively have documentation to uphold a dog's work in court. and that includes a decision that will be made later this year about whether or not a dog can sniff around a person's home without a warrant. coming up next, women and the
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law conference in san diego. and former congressman jesse jackson junior appeared in court today. they spent $750,000 in campaign funds on personal items, it is alleged. both of them, congressman jackson and his wife, are appearing separately in court today. the ex-congressman said last week that he fully accepts responsibility responsibility for the improper decisions and mistakes he has made. the defense secretary, leon panetta, is one of his civilian work force to get ready for furloughs when the sequester those into effect. he said we have no legal funding for reductions. should sequestration occur, the dod will be forced to place the vast majority of the civilian workforce on administrative
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furlough. secretary leon panetta said he has notified congress and all and please, giving at least 30 days notice before any furlough. the chairman, buck mckeon, says this is bad, but not unexpected news. the house armed services committee predicted that a sequester would result in layoffs of civilian employees. the house has passed legislation to avoid the white house. democrats have blocked it. here's what president obama had to say about the sequester yesterday. >> republicans and democrats in congress face a choice. are they willing to compromise to protect vital investments and education and health care and national security, and all the jobs that depend on a? or would they rather put hundreds of thousands of jobs and are putting us at risk. that is the choice.
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if you want to see a bunch of first responders lose their jobs because you want to protect a special interest loophole? are you willing to have teachers laid-off? or kids not have access to headstart? or deeper cuts in student loan programs. just because he would like to protect the special tax interest loophole that the vast majority of americans rely upon. that is the choice on the question. >> the defense department is holding a briefing today on civilian furloughs ahead of the sequester cuts that are scheduled to take effect march 1. we will have live coverage at 1:00 p.m. eastern time today. also alive, on c-span, the assistant secretary of state for conflict resolution. we will talk about iraq and afghanistan with the council on
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foreign relations. looking at the primetime lineup, john kerry will speak in virginia. it was his first major speech since being confirmed. .. >> one is all you need. if you can't a merchant ship, the idea was come alongside and
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put a crew on board, take it to afford where a judge could adjudicate it, sell it at auction, and you got to keep all the money. but, of course, because it depends entirely on the profit motive, the shipowner paid the man, a ship itself, supplies the food, he expects in return on his money. and the crew expected money. without further ports where they could be condemned and then sold, you can't make a profit on privateering. and, therefore, confederate privateering died out almost immediately. lasted about three months, slightly longer. and maritime entrepreneurs found that they could make more money blockade running speed historian craig symonds looks at the civil war at sea, saturday night at 10 p.m. eastern am a part of american history tv this weekend on c-span3.
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>> a discussion now with supreme court justice ruth bader ginsburg. she spoke at the thomas jefferson school of law 13th annual women and the law conference in san diego where she answered questions from the audience about her experience in law come including her today -- her two decades on the high court. >> i'd like to begin. can we all be seated, please? excuse me, can we all be seated? we have a very interesting question and answer session with three of our thomas jefferson school of law professors and students, and justice ruth bader ginsburg of the united states supreme court. in order to maximize the question and answer time, i'm really going to minimize the introduction to give we don't know who ruth bader ginsburg is
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now -- [laughter] -- i think we shouldn't be in law school. okay? but i did want to say that ruth and i are very old friends. i've known her for 20 years. we met through a program which she attended four times and had the great honor getting to know her every time she came a little bit better, and it's not only an honor and privilege, not an absolute pleasure to be with such a wonderful, warm, intelligent, caring and sensitive woman. it's really wonderful. and so i now want to introduce rebecca lee who is an associate professor of law at thomas jefferson school of law. she is one of the interesting things about this panel is we all have a harvard connection to almost all of us one way or the
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other, and she is a degree public policy from harvard kennedy school of government, and, of course, a lot agree, and is very involved in employment law. and ken vandevelde is, goes, we don't need introduction for ken vandevelde. went on to say in a very articulate way, he is the reason i am here. he hired me. he was our former dean. he is a brilliant brilliant scholar, harvard law school and now has a ph.d in history, american legal history. he's a funny, wonderful, sensitive guy who is also a great teacher. and jennifer mccollough, i was reading her cd. i want to be jennifer mccollough. [laughter] i love this woman. she is a native texan, a graduate of the united states
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naval academy. she hasn't stopped helping people all her life. she is really an exceptional cross-country mission following the hurricane katrina. i become it goes on and on and on. basically this is a person who, if you're in trouble, you want jennifer on your team last night so i want to be jennifer when i grow up. so now what we are going to do for the question and answer session is am going to have rebecca lee start with her question, and then ken vandevelde, the second question, and jennifer, the third question. and we will proceed in that order and to all 15 questions are answered. ruth bader ginsburg will come up to the podium to answer the questions, and we'll have this dialogue, okay? does that work? [applause] >> thank you.
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i learned today that your dean loves the odyssey, and so i would like to begin by quoting a line from a famous translation of the odyssey. this is the story of a man never at a loss. when i met 20 years ago a woman who is never at a loss -- [laughter] that is susan tiefenbrun. whatever it is, whatever the job is, you give to susan and she will do it. and so now i think you will begin with the first question speak with yes. and if i could begin by producing also that it is such an incredible honor and pleasure to be here with justice ginsburg. and i thank the justice for her service, as well as for spending some time with us, and for her willingness to answer our questions. justice ginsburg come you are
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now in their 20th year on the supreme court, which is wonderful. after having served 13 years on the d.c. circuit. what is also remarkable is that you had an equally important career as a lawyer for becoming a judge. you are a cofounder of the women's law project of the women's rights project at the aclu where you also served as general counsel, and in that role you litigated many important sex discrimination cases, including six arguments of the supreme court, of which you 15. further, as a law professor at columbia you were the first tenured woman at the law school. and all of these ways you been a leader throughout your career. but two judges see themselves as leaders in some sense, based on your observation? if yes, in what ways? and if not, why do you think not?
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>> [inaudible] that is, we don't have an agenda. we are not like a legislator or an executive. we don't create -- they come to us. there was a great judge in circuit, who once said judges are like firefighters. they don't make -- but they do their best to put them out. now, a wide array of views, of course i can't project my views. i can try to be cleaned because if i get that way i would not be respected at all. you have to work, be able to work together with the team, have respect for your fellow members, be sensitive to their concerns. so there is a tug towards the
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middle and away from the extremes. so -- [laughter] >> we're going to try to adjust that. it's coming from somewhere. not me. >> there we go. [applause] >> but what we can do is, when the case comes to us, you didn't put it down but there was a request for us to review, then one can try to teach the audience. i spoke earlier today about the lilly ledbetter case. that was one where i could, even though i spoke in defense for myself that three of my colleagues, i was able to create a better understanding of what lilly ledbetter's problem was.
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so i hope that answers your question in part. >> thank you. >> justice ginsburg, let me start also by thanking you for your appearance here today. and welcome back to thomas jefferson school of law. it's been a decade since we've seen. it's great to see you and we are honored to have you here. in keeping with the theme of the conference, i'd like to start off my questions with a kind of two-part question. the first part is, what qualities do you think a president should seek any supreme court justice? particularly at this time in our history. and then secondly, what do you think of the practice that has sometimes been prevalent in recent years, of appointing easily confirmable justices without a track record that might invite controversy?
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>> [inaudible]. someone who drives in the study of the law, someone who is able to read and absorb quickly vast amounts of mentor you. someone -- vast amounts of material. speaking and writing. i think those are the qualities the president should seek. it is the best and the hardest job i've ever had. and one thing that, as i grow older, it's not as easy for me to do as it once was. the day could last until i was finished with whatever i was doing.
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and now i have to let loose every now and then and just sleep, as i did this morning. [laughter] when i slept through three a large and finally someone had to come in and shake me, wake me up. [laughter] and the second part of your question was polarization come is that -- >> easily confirmable person such as yourself who had something of a track record. >> i don't see it in my job. my most recent colleagues, justice sotomayor and justice kagan. they were not that easily confirmed. they should have been. they should have been. i hope for the day when we will get back to where the system was when i was nominated and with stephen breyer was nominated.
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i was nominated in 1993. justice breyer in 1994. there was a true bipartisan spirit prevailing in our congress. i was confirmed 96-3 at and i said frankly, nowadays i wonder if the president would even nominate me because of my long affiliation with the american civil liberties union. and yet, in 1993, not one question was asked about my aclu connection, and among the people who voted for me was strom thurmond, who had opposed my nomination in 1980 in the d.c. circuit, but was in my corner for the supreme court nomination. so i hope people will see that the way -- we should reverse and go back to the way it was when there was bipartisan support for
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the president's nominees. >> justice ginsburg, i would like to, thank you for being here giving us your time but i would also like to say someday when i grow i would also like to be like you. [laughter] spent my first question is when you're in law school sitting in my shoes did you expect is a time when women would be appointed to the supreme court? if so, did you ever imagine a dream that you would be one of them? >> in the ancient days when i was -- [laughter] >> women were 3% of the lawyers in this country, on the bench they were barely there. the first woman appointed to the federal appellate court was appointed by franklin delano
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roosevelt in 1934, florence allen, who served on the sixth circuit. when she retired there were none until president johnson appointed shirley hostettler. initiative came the first ever secretary of education. and then there were none again. there was a president who changed the way things worked. he deserves tremendous credit for it and that is president jimmy carter. he never had a supreme court nomination to make, but he literally changed complexion of the u.s. judiciary. he looked around at the judges, and he said, you know, they all look like me. but that's not, that's not the great u.s.a. so i am going to look for judicial appointees in places
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where no one looked before. i'm going to appoint members of minority groups, and women in numbers. president carter did that on the whole. i think the american bar association ranked his appointees higher than his predecessors. he had only four years. he nominated and had confirmed 11 women, to courts of appeals, i think over 25 the district court. and no president ever went back fully to the way it was. president raised in -- president reagan did want to be outdone, so he determined to appoint the first woman to the u.s. supreme court. he made a nationwide search and they came up with a superb choice in justice sandra day o'connor. so now i never, i had hoped when i was in law school that i would
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be able to get a job as a lawyer. [laughter] you know, these were free title vii days. sign up sheets for interviews at the law schools i attended, both harvard and columbia, many of them said men only. i don't how many times i was told the story, well, we had a woman lawyer ones, and she was dreadful. [laughter] how many men and lawyers did you have that didn't behave the way you thought they would? [laughter] so the change that i've seen in my lifetime is exhilarating, and the change in the federal judiciary is to the credit of president jimmy carter. >> speaking of her female colleagues, after justice sandra day o'connor retired in 2006, you were the only thing a justice on the supreme court
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until justice sonia sotomayor joined the court in 2009. justice elena kagan followed, joining the court in 2010. does come you're now one of three women on the supreme court. can you compare for us your experience as the only woman on the court with that as being one of key theme of justices and without a being of one of three female justices? >> we thought when we were to -- the national association of women judges forecast what would come. so they had a reception for justice o'connor and me in the fall of 1993, and they gave us t-shirts with. [laughter] and mine said -- and her said
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i'm sandra not ruth. mindset i'm ruth, not sent a. [laughter] every year i was on the court with sandra, invariably one lawyer or another would call me justice o'connor. well, they heard a woman's voice. didn't matter that we didn't sound at all unlike. then when santa left, it was lonely. it was really lovely. at least when she was there she was a tall woman, and then left this rather small person. [laughter] until i was joined by justice sotomayor and justice kagan. and if you come and watch a case in the court these days, you will see a very lively bench. my sisters on the court are not
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shrinking violence -- violence. they're very active participants in the argument. and i do think that justice sotomayor facing competition with justice scalia to see who can ask the most questions. [laughter] [applause] >> well, with three, we are not one at a time curiosities. >> justice ginsburg, i'd like to go back to the time of the 1970s, when there was a strong effort to amend the constitution with the equal rights amendment, and effort that was unsuccessf unsuccessful. and i'm wondering from your perspective as someone who engage her entire life in gender equality was the belie believe t the failure of the equal rights
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amendment had a long-term impact on the cost of gender equality, or whether ultimately the necessary tools have been found in the equal protection clause, other parts of the constitution? and then i guess the second part of that, i'm wondering how you feel as a pioneer in the cause of gender equality about -- made to date in which you believe may be the principal barrier remaining to the future. >> it's a multipart questions. [laughter] let's start with the era. first, it wasn't something new. the equal rights amendment was first framed by the national women's party. it was a more progressive wing of the women's movement, women's suffrage movement. women who are no not content wih the vote that they wanted full equality. and so they introduce the equal rights amendment in 1923 and was introduced every year
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thereafter. it didn't take a steam until martha griffith from michigan took it on as her cause. and when she did, she said, there is nothing that this amendment seeks to accomplish that could not be done if the courts would interpret the equal protection clause the way they should interpret it, to include all people and not just some of them. still, the era was a very important symbol, and i hope it will one day become part of this constitution, for a simple reason. if i -- i'm addressing a class of schoolchildren, and i can point to the first amendment and the protection of freedom of
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speech and of the press, there's no statement that men and women our citizens, of people of equal stature before the law. there's no such statement in our constitution. susan williams said before in of the constitution, even in the regime that's the most oppressive, there is an equal rights, that statement. i think that statement belongs in our constitution to say that this is a value as fundamental as the ones that already enshrined. in the constitution. so it may be just a symbol, but it's an important symbol. as far as what the courts have done, susan tiefenbrun gave me a book design from the civil rights commission. this was in the middle 70s. we were going through the united states code. i had to find all the laws but
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differentiated on the basis of gender. almost all of those laws are gone. there are a few in the immigration and nationality area, but in state and federal law books the explicit gender-based, discrimination is gone. what remains, i can perhaps best explained by remembering what it was like to go to a symphony orchestra concert when i was young. you never saw a woman and a symphony orchestra. soma brilliant person thought it was a simple solution to the problem. they would drop the curtain between the audition is and the curtain he was being auditioned. and with that, with the audition or not knowing whether is a man
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or a woman playing, suddenly the appearance of women in symphony orchestras grew and grew. i was telling this story adding musical festival not long ago, when a young violinist said to me, but you missed one thing. we audition shoeless, so -- [laughter] -- the judges will not know if a woman is coming on stage. what that reflects, an unconscious bias. people see a woman and they assume -- there was a critic for "the new york times," a music critic, who vowed he to tell the difference between a woman playing in a mansplain. but then they put into the test. and he failed mr. nunnelee. [laughter] it's the unconscious bias. it was a great case in the
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1970s brought by my colleague at columbia, harriet. it was against at&t. and it was about positions for women in middle management. well, the women did fine on the various tests up until the last one. and the last one was a total person test. that meant they were -- there was an interviewer interviewing a candidate for promotion, and women failed disproportionally at that stage. why? it wasn't that the interviewer intended to discriminate. it's just that he failed comfortable with someone who looked like himself, he could trust that person. the woman was different. so it's getting past the unconscious bias that exists, still exists, that is a high
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hurdle to overcome. and the other, as has been mentioned at this covers, it's balance to have a family life in which you thrive and they work right. and i was blessed to be married 56 years to a man who was my partner in everything. he had the idea when my daughter was born, that a child's personality is formed in her first year of life. so he was the primary feeder of jane, and what he learned that that wasn't necessarily so. but in any event, he, all my life he had been my biggest
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supporter. and that, i'm happy to see that in my children's lives, their marriages are that way as well, that they are two parents, people have work lives that they thrive in. >> so much of your experience while attending harvard law school, i was told once i would make it through the program. after spending 10 years on active duty, i saw great strides. there's still room for improvement. hasher observation of women in the login a similar experience? >> jennifer, i'd like to tell you a story so you will know how far we have come. not gotten all the way, but one
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of my favorite clients was a captain in the air force, captain sisson struck. i had hoped that her case would be the first reproductive freedom case to reach the supreme court. this was her story. she was serving in vietnam when she became pregnant. this is 1970. and she was told by the commander of the base, susan, you have a choice. you can get an abortion on base, which many military bases offered to women in service, or dependence of man in service at that time. or you can leave the service. and susan said, i cannot have an